S v Smile and Another

• Jurisdiction: South Africa
• Judge: Smalberger JA, Marias JA and Melunsky AJA
• Judgment Date: 27 March 1998
• Citation: 1998 (1) SACR 688 (SCA)
• Hearing Date: 12 March 1998
• Counsel: S V Notshe for the appellants J J Bezuidenhout for the State
• Court: Supreme Court of Appeal

Melunsky AJA:

The two appellants are adult males. They stood trial in the Eastern Cape Division of the Supreme Court F on two counts of murder (counts 1 and 2) and one of robbery. The offences were alleged to have been committed on 4 April 1993 at 3 Graham Street, Bedford. Despite their pleas of not guilty the appellants were convicted on all counts. They were sentenced to death on each of the murder counts and to 12 years' imprisonment on the third count. They appeal to G this Court against their convictions and sentences on counts 1 and 2 and, with the leave of the Court a quo, against their convictions on count 3.

Before dealing with the facts of the appeal, it is necessary to refer to a preliminary issue raised by Mr Notshe, who H appeared for the appellants in this Court and in the Court a quo. The trial commenced on 7 June 1994 but before evidence was led Mr Notshe applied for a postponement of the hearing to enable him to bring an application to the Full Court or another Judge for an order to compel the State to hand over to the defence separate summaries of the evidence to be given by each of the witnesses whom the State proposed to call. The application was opposed by the State (represented both in I this Court and in the Court a quo by Mr Bezuidenhout) and was dismissed. Thereupon Mr Notshe requested the learned trial Judge to order the State to furnish the defence with separate summaries of the evidence to be given by each prosecution witness. After opposition by the State this application, too, was dismissed. J

Melunsky AJA

A The trial then proceeded and, for reasons which are not relevant to this appeal, was adjourned on 24 August and resumed on 6 December by which stage the State case had not been closed. During 22 and 29 July the Full Court of the Eastern Cape Division heard applications relating to the right of an accused person to be given access to witnesses' B statements before prosecution (see Phato v Attorney - General, Eastern Cape, and Another; Commissioner of the South African Police Services v Attorney - General, Eastern Cape, and Others 1995 (1) SA 799 (E)). The Court supplied reasons for judgment on 27 October but it made an order on 29 July in terms of which, inter alia, the Attorney - General was ordered to furnish one of the applicants, who was an accused person, with statements of witnesses and other documents C contained in the police docket.

During August 1994 and after the terms of the aforesaid order became known to counsel for the State in the trial in the Court a quo, statements of the State witnesses who had not yet testified were delivered to the appellants' counsel and D statements of the witnesses who had already testified were made available to the defence.

In this Court Mr Notshe argued that the appellants had been deprived of the right to a fair trial on the ground that the State had refused to furnish them with summaries of statements of witnesses before the hearing. He submitted that the E subsequent change of stance by counsel for the State, while the State case was already under way, was of no consequence, as the appellants were entitled to the summaries of statements before the commencement of the trial to enable them to prepare properly. The denial of that right, according to the argument, carried with it the inevitable result that F the appellants' constitutional rights to a fair trial, in terms of s 25(3) of the Constitution of the Republic of South Africa Act, 200 of 1993 ('the interim Constitution'), had been violated.

Counsel for the appellants submitted, moreover, that the issue of an unfair trial could not be decided by this Court. This G argument was based on the provisions of s 17 of Schedule 6 to the Constitution of the Republic of South Africa Act 108 of 1996 ('the new Constitution') which reads:

'All proceedings which were pending before a court when the new Constitution took effect, must be disposed of as if the new Constitution had not been enacted, unless the interests of justice require otherwise.'

H According to Mr Notshe's submission, as this matter was pending in this Court when the new Constitution took effect, it had to be dealt with in terms of the provisions of the interim Constitution which was in force during the trial in the Court a quo. He argued that the denial of a right to a fair trial was a violation of a fundamental right entrenched in Chapter 3 of the I interim Constitution; that in terms of ss 98(2)(a) and (3) read with s 101(5) thereof this Court has no jurisdiction to adjudicate upon the matter; and that the issue should be referred to the Constitutional Court in terms of s 102(6). It was further submitted by the appellants' counsel that the interests of justice did not require that the issue should be disposed of J in terms of the new Constitution.

Melunsky AJA

Nothing turns on the fact that in the Court a quo counsel had requested to be furnished with summaries of the statements A of prosecution witnesses and not disclosure of the complete contents of the statements. The appeal was indeed argued on the basis that the decision of the Constitutional Court in Shabalala and Others v Attorney - General, Transvaal, and Another 1996 (1) SA 725 (CC) was to be applied to the facts of this case. And in the light of that decision counsel for the B respondents, quite correctly, conceded that the defence should have been provided with access to the statements of the State witnesses before the commencement of the trial. He submitted, however, that the appellants' right to a fair trial had not been violated because the statements had been made available to the defence a considerable time before the closure of C the State case.

This brings me to the question whether this is a matter which should be referred to the Constitutional Court to enable that Court to rule on the fairness of the proceedings. One of the facts that is of significance in this regard, in my view, is that it has already been held by the Constitutional Court that 'blanket docket privilege' cannot be invoked by the State to justify the D withholding of witnesses' statements. As Mahomed DP put it in Shabalala's case at 748F - G (para [50]:

'(T)here appears to be an overwhelming balance in favour of an accused person's right to disclosure (of statements) in those circumstances where there is no reasonable risk that such disclosure might lead to the disclosure of the identify of informers or State secrets or to intimidation or E obstruction of the proper ends of justice.'

It is also appropriate to refer to the same learned Judge's comments in S v Shikunga and Another 1997 (2) SACR 470 (Nm) at 484b-fin relation to the consequences of a violation of one or other constitutional right in a criminal trial. He said F the following at 484b-f:

'It would appear to me that the test proposed by our common law is adequate in relation to both constitutional and non-constitutional errors. Where the irregularity is so fundamental that it can be said that in effect there was no trial at all, the conviction should be set aside. Where one is dealing with an irregularity of a less severe...